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UP Law F2021 02-011 Qatar v.

Bahrain
Public International Law Arts. 1-6 VCLOT (specifically Art. 2(1)(a)) 1994
President BEDJAOUI; VP SCHWEBEL; Judges ODA, JENNINGS, TARASSOV, GUILLAUME, SHAHABUDDEEN, AGUILAR
MAWDSLEY, WEERAMANTRY, RANJEVA, HERCZEGH, SHI, FLEISCHAUER, KOROMA; Judges ad hoc VALTICOS, RUDA (16)

SUMMARY Qatar and Bahrain have been in a decades-long dispute regarding sovereignty over islands and
maritime waters. Eventually, in the course of meetings and negotiations, the countries executed two
instruments in order to aid them in reaching a solution to their disputes: 1987 Letters and 1990 Minutes.
Because a solution still wasn’t reached by a certain date, Qatar filed an Application against Bahrain at the
ICJ. Qatar argued that the ICJ has jurisdiction, citing the 2 instruments as basis; Bahrain contended that the
1990 Minutes wasn’t even an international agreement and thus, the ICJ doesn’t have jurisdiction. The ICJ,
however, ruled that the 1990 Minutes is an international agreement, after an examination of its contents
and not merely looking at its nomenclature. The Court also found that, by the terms of the agreements, the
countries have submitted their disputes to the Court’s jurisdiction.

SUBSTANTIVE FACTS2
 Qatar and Bahrain had a long-standing dispute regarding sovereignty over islands, maritime
boundaries, and territorial waters. In order to find a solution, the King of Saudi Arabia acted as
mediator3, the result of which was a set of Principles for the Framework for Reaching a Settlement in
March 1983 (“1983 PFRS”). The 1983 PFRS contained 5 principles, the pertinent ones being:
 1st Principle: All disputes relating to (1) sovereignty over islands, (2) maritime boundaries,
and (3) territorial waters, are to be considered as complementary and indivisible issues,
which shall be solved comprehensively together.
 4th Principle: A Tripartite Committee was formed, for the purpose of reaching substantive
solutions acceptable to both countries.
 5th Principle: In case the Tripartite Committee fails to reach a solution, the Governments of
Qatar and Bahrain, in consultation with the Government of Saudi Arabia, shall determine the
best means of resolving the matter, on the basis of the provisions of international law. The
ruling of the authority agreed upon for this purpose shall be final and binding.
 With no progress still, the King of Saudi Arabia in December 1987 sent Letters (“1987 Letters”)
containing new proposals to the Amirs of Qatar and Bahrain, who both accepted the same. The 1987
Letters contained 4 points, the pertinent ones being:
 1st Point: All disputed matters shall be referred to the International Court of Justice (“ICJ”), for
a final and binding ruling, which must be executed by the two countries.
 3rd Point: A Tripartite Committee (composed of the representatives of Qatar, Bahrain, and
Saudi Arabia) is formed for the purpose of “approaching the ICJ” so that a final and binding
ruling may be issued.
 4th Point: Saudi Arabia will continue mediating to guarantee implementation of the 1987
Letters’ terms.
 Also in December 1987, in an Announcement by Saudi Arabia, Qatar and Bahrain agreed that “the
matter be submitted for arbitration,” pursuant to the 5th principle of the 1983 PFRS.
 After several meetings of the Tripartite Committee, the Bahraini Formula was eventually created by
Bahrain (to which Qatar eventually agreed to, in December 1990). The Bahraini Formula (which is
the delimitation/definition of the dispute submitted to the ICJ in the present case) reads:
 “The Parties request the Court to decide any matter of territorial right or other title or
interest which may be a matter of difference between them; and to draw a single maritime
boundary between their respective maritime areas of seabed, subsoil, and superjacent waters.”
 Meanwhile, in the December 1988 Meeting of the Committee, its discussion was for the purpose of
defining exhaustively the matters which would be referred to the Court, which are the following:
1. The Hawar Islands
2. Fasht al Dibal and Qit’at Jaradah

1
2nd session, 1st case
2
Please note that I underlined each of the characters’ names at the first instance that each appeared in the facts; dates, periods, and
article numbers (along with some emphasized facts) are in bold letters; and documents are in italics.
3
Saudi Arabia used good offices as synonym for mediation/arbitration.
3. The archipelagic baselines
4. Zubarah
5. The areas for fishing for pearls and fish, and other matters connected with maritime
boundaries
 The two countries agreed to these, but Qatar could only accept insofar as Zubarah is concerned if the
“content relates to private rights,” to which Bahrain replied that its claim over Zubarah had no limitation.
 At the meeting of the Cooperation Council of Arab States in December 1990, Qatar accepted the
Bahraini Formula. The Foreign Ministers of Qatar, Bahrain, and Saudi Arabia signed Minutes (“1990
Minutes”). The 1990 Minutes4 stated that:
1. The two countries reaffirmed what they had previously agreed upon.
2. The mediation of the King of Saudi Arabia shall continue only until May 1991.
3. Should the period expire without a solution reached, the countries may submit the matter to
the ICJ, in accordance with the Bahraini Formula.
4. Should the two countries reach a solution, the case will be withdrawn from arbitration 5.
 However, since the arbitration did not produce a solution by May 1991, Qatar filed an Application
instituting proceedings against Bahrain at the ICJ on July 8, 1991 regarding disputes between them
relating to:
1. Sovereignty over Hawar islands,
2. Sovereign rights over shoals of Dibal and Qit’at Jaradah, and,
3. Delimitation of the maritime areas of the two States.
 It is Qatar’s position that:
i. The basis of ICJ’s jurisdiction is founded on the 1987 Letters and 1990 Minutes, wherein both
countries made express commitments to refer their disputes to the ICJ,
ii. The subject/scope of such jurisdiction is provided for by the Bahraini Formula
iii. Thus, ICJ has jurisdiction to adjudicate upon (a) the disputes and (b) Qatar’s Application.
 It is Bahrain’s position, however, that:
i. The 1990 Minutes do not constitute a legally binding instrument (that it is merely a
simple record of negotiations) and,
ii. Thus, the ICJ does not possess jurisdiction over the Application of Qatar.

PROCEDURAL FACTS
 After the filing of the Application, the Registrar of the ICJ communicated the Application to Bahrain,
pursuant to Article 40(2) of the ICJ Statute. Also, in accordance with Article 40(3) of the ICJ Statute,
all other States entitled to appear before the Court were notified by the Registrar of the Application.
 It was agreed by the two countries that the primary issues to be determined are [1] the jurisdiction
(of the ICJ) and [2] admissibility (of the Application). The ICJ President then decided that the written
proceedings should first address these 2 issues.
 The countries submitted their written pleadings as follows (in order): Memorial (Qatar), Counter-
Memorial (Bahrain), Reply (Qatar), and Rejoinder (Bahrain). Thereafter, oral arguments were heard
by the Court.

RATIO
[RELEVANT] W/N the 1990 Minutes between Qatar and Bahrain constitutes an INTERNATIONAL
AGREEMENT creating rights and obligations for the countries6—YES
BAHRAIN’S CONTENTION # 1: THAT THE 1990 MINUTES IS MERELY A SIMPLE RECORD OF NEGOTIATIONS.
Bahrain maintained that the 1990 Minutes is merely a simple record of negotiation, similar to minutes of
the Tripartite Committee.

However, the ICJ pointed out that international agreements may be contained in whatever format and be
designated a variety of nomenclature. According to Article 2(1)(a) of the Vienna Convention on the
Law of Treaties (VCLOT), a “treaty” is defined as “an international agreement concluded between States

4
The ICJ Decision mentioned that the English translation of the 1990 Minutes supplied by the two countries differed on certain points,
but upon a reading of the comparison, there appears to be no difference.
5
In accordance with the 5th Principle of the 1983 PFRS
6
The two countries agree that the 1987 Letters constitute an International Agreement. Thus, only the issue about the 1990 Minutes is
discussed by the ICJ.
in written form and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.” (emphasis supplied) The Court even
cited a previous case7 wherein a joint communiqué8 may also constitute an international agreement.

The Court then ruled that the 1990 Minutes (1) includes a reaffirmation of obligations previously
entered into (including the 1987 Letters) by the two countries, (2) entrusts the arbitration to the King of
Saudi Arabia until May 1991, and (3) addresses the circumstances under which the parties may submit
the matter to the ICJ.

Thus, the 1990 Minutes is neither (1) a mere account of discussions nor (2) a summary of points of
agreements and disagreements. On the contrary, it enumerates the commitments to which the countries
have consented. Therefore, the 1990 Minutes constitutes an international agreement, creating rights and
obligations for the countries.

BAHRAIN’S CONTENTION # 2: THAT IT NEVER INTENDED TO ENTER INTO A LEGALLY BINDING AGREEMENT
The Foreign Minister of Bahrain argued that he believed he was signing to a mere “political
understanding” and never considered that the Minutes were a legally binding agreement. He also argued
that according to Bahrain’s Constitution, a treaty can only come into effect after its enactment as law.

The ICJ held that it was unnecessary to consider the intentions of the Foreign Minister of Bahrain (and
that of Qatar’s, at any rate). The Ministers signed an enumeration of commitments accepted by their
Governments. Bahrain’s Foreign Minister cannot now assert that he merely intended to sign only a
political understanding.

BAHRAIN’S CONTENTION # 3: THAT THE SUBSEQUENT CONDUCT OF QATAR SHOWED THAT IT ALSO NEVER CONSIDERED
THE 1990 MINUTES TO BE A LEGALLY BINDING AGREEMENT
Bahrain pointed out the following:
a. Qatar waited until June 1991 before it registered the 1990 Minutes before the UN Secretariat, as
per Article 102 of the UN Charter;
b. Qatar did not file the 1990 Minutes with the Secretariat of the Arab League, in violation of Article
17 of the Pact of the League of Arab States; and,
c. Qatar did not follow its own Constitution for the conclusion of treaties.

The Court addressed the above as follows:


a. Article 102 of the UN Charter provides that an international agreement or treaty not registered
with the UN Secretariat may not be invoked by the parties before any organ of the UN. But the
Court ruled that late registration (and even non-registration) does not affect the validity of the
agreement, which is still binding on the parties.9 The same ruling applies as well to the non-
registration with the Secretariat of the Arab League.
b. Also, there is nothing in the records which would show that Qatar’s disregard of its own
Constitution meant that it did not intend to conclude an instrument of such nature. Moreover, even
if such an intention can be shown to exist, such intention cannot defeat the actual terms of the
instrument.

Thus, from the foregoing, the 1990 Minutes, similar to the 1987 Letters, constitutes an international
agreement creating rights and obligations for the countries.

W/N the ICJ has jurisdiction over the dispute, according to the terms of the international
agreements between Qatar and Bahrain—YES
As the ICJ reiterated, both countries agreed in the 1st Point of the 1987 Letters that “all the disputed
matters shall be referred to the ICJ” for a “final” and “binding” ruling, which must be executed by the
two countries. Also, in the 1987 Letters, 3rd Point thereof, a Tripartite Committee was formed for the
7
Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p.39, par. 96
8
An official announcement about a usually very important piece of news (Merriam-Webster definition)
9
From my understanding, this is akin to the Civil Code provisions on the effect when a contract is unenforceable: that it cannot be
brought to court, but that it is still a valid contract nonetheless, and may be ratified.
purpose of “approaching the ICJ and satisfying the necessary requirements to have the dispute
submitted to the court.” Thus, the two countries clearly undertook to refer all the disputed matters
to the ICJ.
***
ON THE QUESTION RE: THE SCOPE OF THE DISPUTE
The subjects of the dispute as enumerated in Qatar’s Application (see Facts) were claimed by Bahrain to
be an incomplete formulation as compared against what was intended to be included by the Bahraini
Formula (e.g. Zubarah was omitted [see last paragraph of 1st page]). This contention was acknowledged
by Qatar, which invited Bahrain to file a separate Application or a Counter-Claim with respect to Zubarah.

In addition, the ICJ noted that in the 1983 PFRS, the countries have agreed to solve comprehensively
together all disputes relating to (1) sovereignty over islands, (2) maritime boundaries, and (3) territorial
waters. The Court also interpreted that when the 1987 Letters and 1990 Minutes speak of the “matter/s,”
they refer to the whole of the dispute.
***
Therefore, by the terms of the countries’ international agreements, and as circumscribed by the
Bahraini Formula agreed upon by both, the two countries have assented to submit the whole of their
dispute to the Court’s jurisdiction. (The Court then decided to indeed afford the countries the
opportunity to submit to the Court the whole of the dispute; see Fallo)

(Note: Although not related to the issues, the ICJ, towards the end of the decision, noted that there is a rule of
customary international law, defined in 1927 by the Permanent Court of International Justice, that “the
Court cannot take account of declarations, admissions, or proposals which the parties may have made in
the course of direct negotiations when the negotiations…have not led to an agreement between the
parties.”)

FALLO

The Court votes 15-1 in:


1. Finding that the 1987 Letters and 1990 Minutes are international agreements creating rights and
obligations;
2. Finding that, by the terms of those agreements, the countries have undertaken to submit to the Court
the whole of the dispute between them, as delimited by the Bahraini Formula;
3. Deciding to afford the countries the opportunity to submit to the Court the whole of the dispute;
4. Fixing November 30, 1994 as the deadline by which the countries must take action to submit the
dispute;
5. Reserving any other matters for subsequent decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, July 1,
1994, in three copies, one of which will be placed in the archives of the Court and the others transmitted to
the Government o f Qatar and of Bahrain, respectively.

Signed by President BEDJAOUI and Registrar VALENCIA-OSPINA.


Separate Opinions: VP SCHWEBEL and Judge ad hoc VALTICOS
Dissenting Opinion: Judge ODA